Article 1597 C.c.Q.: Debtor in Default by Operation of Law
A debtor is in default by the sole operation of law where the performance of the obligation would have been useful only within a certain time which he allowed to expire or where he failed to perform the obligation immediately despite the urgency that he do so. A debtor is also in default by operation of law where he has violated an obligation not to do, or where specific performance of the obligation has become impossible through his fault, and also where he has made clear to the creditor his intention not to perform the obligation or where, in the case of an obligation of successive performance, he has repeatedly refused or neglected to perform it.
Civil Code of Québec, art. 1597 C.c.Q.
What this article means
Article 1597 lists the situations where a debtor is in default "by operation of law": automatically, without a written demand. The general rule (article 1595) requires a writing; article 1597 sets out the exceptions, where a writing would serve no practical purpose.
A debtor is in default by operation of law in several cases: where the obligation had to be performed within a set time that was allowed to expire; where immediate action was required in an emergency; where the debtor violated an obligation not to do; where specific performance became impossible through the debtor's fault; where the debtor made clear an intention not to perform; or, for an obligation of successive performance, where the debtor repeatedly refuses or neglects to perform it.
This article matters because it determines from when the creditor can claim damages or exercise other remedies. Even where default is by operation of law, sending a writing anyway is often prudent: it dates the failure and documents the situation, which makes proof easier.
What it means for you
If you are a tenant
In some cases, you don't have to wait for a deadline to expire before acting: for example, if your landlord clearly tells you they will not carry out a repair they are bound to make, or if they have made performance impossible. The law may then treat them as in default by operation of law.
Even so, a written demand remains useful even when it isn't strictly required: it fixes the date of the failure, states what you're claiming, and provides clear evidence. If you're unsure whether this article applies to your situation, the writing is the safer route.
If you are a landlord
Article 1597 can apply where a tenant clearly signals an intention not to meet an obligation, breaches an obligation not to do, or repeatedly neglects an obligation of successive performance. In those cases, default may flow from the law itself.
Even then, it is generally best to document the failure in writing. A dated writing that describes the conduct and your claims strengthens your file and clarifies the starting point of the default, which is useful if you later apply to the TAL (Tribunal administratif du logement).
Related articles
- Mise en demeure: Definition, Effects and Deadlines (Demand Letter)
- Sous toutes réserves: Meaning of the Notice (Without Prejudice)
- Article 1595 C.c.Q.: Written Form of an Extrajudicial Demand
- Article 1601 C.c.Q.: Specific Performance of the Obligation
- Article 1604 C.c.Q.: Resolution or Resiliation of the Contract for Non-Performance